Madhya Pradesh High Court
Hariram Pal vs State Of Madhya Pradesh on 18 September, 2020
Author: Vishal Mishra
Bench: Vishal Mishra
1
HIGH COURT OF MADHYA PRADESH
WP-13381-2020
(HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 1
Gwalior, Dated : 18.09.2020
Shri Kamlesh Kori, learned counsel, for the petitioners.
Shri Vishal Tripati, learned Panel Lawyer, for the respondent/
State.
With the consent, heard finally through video conferencing.
In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this application has been taken up for hearing through video conferencing to maintain social distancing.
Learned counsel for the petitioners has filed an application for adding and deleting the parties being I.A. No. 4836/2020.
For the reasons mentioned in the application, which is not being opposed by the State counsel, accordingly, the same is allowed.
Let necessary amendment be carried out by Monday i.e. 21.09.2020.
The present petition is being filed seeking the following reliefs:-
It is submitted that the petitioner No. 1 is the father of petitioner 2 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 2 No.2 and petitioner No. 2 being the victim of rape. It is submitted that owing to an unfortunate incident said to have taken place with the petitioner No.2, an FIR was got registered on 22.07.2020 at Crime No.118/2020, P.S. Rannod, District Shivpuri. It is alleged that after recovery of petitioner No. 2, she was got medically examined and it was found that rape has been committed on the petitioner No. 2 by the accused of FIR No. 118/2020. It is argued that the petitioner No. 2 is minor aged about 17 years and is unknown to the problems supposed to be caused to her in the society being the victim of rape which have resulted into pregnancy. It is argued that in the interest of petitioner No. 2, the father wants to get the pregnancy terminated owing to the social stigma which would be faced by her during the entire life and fact that she is a minor and having a pregnancy of 12-14 weeks, therefore, the same is permissible to be terminated under the termination of the pregnancy act 1971. It is submitted that on earlier occasion, a petition has been preferred before this Court which was registered as W.P. No. 12869/2020, but the same was dismissed as withdrawn with liberty to file a properly constituted on 05.09.2020, therefore, the present petition has been filed.
The case was listed for hearing on 11.09.2020 and this Court has directed to State counsel to produce the health status report of petitioner No. 2 after getting herself medically examined. The health status being produced under the seal and signature of the Sonologist, 3 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 3 District Hospital, Shivpuri which is ultrasonographic report showing the age of fetus to be 14 weeks. Along with the report the medical status report is also produced by the respondents/authorities. The sonography report is signed by Dr. M.L. Agarwal, Radiologist, District Hospital, Shivpuri. In terms of the provisions of the Medical Termination of Pregnancy Act 1971 provides for termination of certain pregnancy by the registered medical practitioners and for the matters connected herewith incidental thereto. The relevant provisions are reproduced below for ready reference and convenience:-:-
3.When pregnancies may be terminated by registered medical practitioners.- (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are. Of opinion, formed in good faith, that,-
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health ; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of 4 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 4 limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in C1.(a), no pregnancy shall be terminated except with the consent of the pregnant woman.
4. Place where pregnancy may be terminated.-No termination of pregnancy shall be made in accordance with this Act at any place other than,- (a) a hospital established or maintained by Government, or
(b) a place for the time being approved for the purpose of this Act by Government.
Provided that the District Level Committee shall consist of not less than three and not more than five members including the Chairperson, as the Government may specify from time to time.]
5. Sections 3 and 4 when not to apply.- (1) The provisions of Sec.4 and so much of the provisions of sub-section (2 of Sec. 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under that Code, and that Code shall, to this extent, stand modified.
(3) Whoever terminates any pregnancy in a place other than that mentioned in section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
Explanation 1.-For the purposes of this section, the expression "owner" in relation to a place means any person who is the administrative head or 5 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 5 otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.
Explanation 2.-For the purposes of this section, so much of the provisions of clause (d) of section 2 as relate to the possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply.] In view of the aforesaid provision it is clearly seen that the pregnancy can be terminated with the permission of the Courts and under special circumstances. In the present case, the petitioner No. 2 is a minor and rape victim and is carrying pregnancy. The father of petitioner No. 2 and she herself want to get the pregnancy terminated, so that she may not face the social problems and mental agony caused to her. In the rape cases, the Hon'ble Supreme Court have permitted the terminated the pregnancies.
The Supreme Court in the case of Murugan Nayakkar Vs. Union of India & Ors. in Writ Petition (Civil) No.749/2017 by order dated 6/9/2017 has held as under:-
"The petitioner who is a 13 years old girl and a victim of alleged rape and sexual abuse, has preferred this writ petition for termination of her pregnancy. When the matter was listed on28.8.2017, this Court has directed constitution of a Medical Board at Sir J.J. Group of Hospitals, Mumbai. Be it noted, this Court had also mentioned the composition of the team of doctors. The petitioner has appeared before the Medical Board on 1.9.2017 and the Medical Board that has been constituted by the order of this Court expressed the opinion Signature Not Verified Digitally signed by GULSHANKUMAR that the termination of pregnancy should be carried out. That ARORA Date:
2017.09.06 18:28:22 IST Reason: apart, it has also been opined that termination of pregnancy at this stage or delivery at term will have equal risks to the 6 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 6 mother. The Board has also expressed the view that the baby born will be preterm and will have its own complications and would require Neonatal Intensive Care Unit (N.I.C.U.) admission.
We have heard Ms. Sneha Mukherjee, learned counsel appearing for the petitioner, Mr. Ranjit Kumar, learned Solicitor General appearing for the Union of India and Mr. Nishant R. Katneshwarkar, le %arned standing counsel for the State of Maharashtra.
Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.
In view of the aforesaid premise, we direct the petitioner to remain present at the Sir J.J. Group of Hospitals, Mumbai in the evening of 7.9.2017 so that the termination of pregnancy can be carried out preferably on 8.9.2017. Mr. Nishant R. Katneshwarkar shall apprise the Dean of Sir J.J. Group of Hospitals, Mumbai so that he/she can make necessary arrangements for termination of the pregnancy.
A copy of the order passed today be handed over to learned counsel for the petitioner and Mr. Nishant R. Katneshwarkar, learned standing counsel for the State of Maharashtra.
The writ petition is accordingly disposed of. There shall be no order as to costs."
The High Court of Bombay in the case of Shaikh Ayesha Khatoon Vs. Union of India and Others reported in 2018 SCC OnLine Bom 11 has dealt with the issue of termination of pregnancy beyond 27 weeks as there was several fetal anomalies including a congenital malformation. The Bombay High Court in the aforesaid case while dealing with most of the judgments of the apex Court in paragraph No.14 to 28 has held as under:-
"14. As has been recorded above, the freedom of a pregnant woman of making choice of reproduction which 7 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 7 is integral part of"personal liberty", whether to continue with the pregnancy or otherwise cannot be taken away. It shall also be taken into consideration that besides physical injury, the legislature has widened the scope of the termination of pregnancy by including "a injury" to mental health of the pregnant woman. Thus, if continuance of pregnancy is harmful to the mental health of a pregnant woman, then that is a good and legal ground to allow termination of pregnancy if all the conditions incorporated in legal provision are met. In the instant matter the petitioner claims that it would be injurious to her mental health to continue with the pregnancy since there are severe foetal abnormalities noticed and it would also be violative of her "personal liberty" to deny her the choice to terminate the pregnancy. The provisions of Section 5 of the Act of 1971 shall have to be interpreted in the manner for advancing the cause of justice. In this context it would be appropriate to refer to the judgment of Division Bench of this Court in the matter of High Court on its own motion vs. the State of Maharashtra, reported in 2017 CriL.J. 218. In paragraph- 13 of the judgment, it is observed thus:
"13. A woman irrespective of her marital status can be pregnant either by choice or it can be an unwanted pregnancy. To be pregnant is a natural phenomenon for which woman and man both are responsible. Wanted pregnancy is shared equally, however, when it is an accident or unwanted, then the man may not be there to share the burden but it may only be the woman on whom the burden falls. Under such circumstances, a question arises why only a woman should suffer. There are social, financial and other aspects immediately attached to the pregnancy of the woman and if pregnancy is unwanted, it can have serious repercussions. It undoubtedly affects her mental health. The law makers have taken care of helpless plight of a woman and have enacted Section 3(2)(b)(i) by incorporating the words "grave injury to her mental health".It is mandatory on the registered medical practitioner while forming opinion of necessity of termination of pregnancy to take into account whether it is injurious to her physical or mental health. While doing so, the woman's actual or reasonable foreseeable environment may be taken into account."
15. While interpreting the provisions of Section 5 of the Act of1971, it must be borne in mind the principle that the section must be construed as a whole whether or not one part is a saving clause and similarly elementary rule of construction of section is made of all the parts 8 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 8 together and that it is not permissible to omit any part of it; the whole section must be read together. The words of Statute are first understood in their natural, ordinary and popular sense and phrases and sentences are construed according to their grammatical meaning unless there be something in the context, or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in special sense different from their ordinary grammatical meaning. The basic principle that while interpreting the provisions of a Statute one can neither add nor subtract even a single word, has to be kept in mind. A section is to be interpreted by reading all of its parts together, and it is not permissible to omit any part thereof. The Court cannot proceed with the assumption that the legislature, while enacting the Statute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, it is not open to the Court to add and amend, or by construction, make up for the deficiencies, which has been left in the Act. The Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven. The Court, while interpreting statutory provisions, cannot add words to a Statute, or read words into it which are not part of it, especially when a literal reading of the same produces an intelligible result. [Vide Nalinakhya Bysack v. Shyam Sunder Haldar and ors., AIR 1953 SC 148; Sri Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459; M. Pentiah and Ors. v. MuddalaVeeramallappa and Ors., AIR 1961 SC 1107; The Balasinor Nagrik Co-operative Bank Ltd. v. Babubhai Shankerlal Pandya and Ors., AIR 1987 SC 849; and Dadi Jagannadham v. Jammulu Ramulu and Ors., (2001) 7 SCC 71].
16. In the matter of New India Assurance Company Ltd. v. Nusli Neville Wadia and another, (2008) 3 SCC 279, the Hon'ble Supreme Court while referring to the analysis of purposive construction has observed in paragraph-52 as narrated below:
"52. Barak in his exhaustive work on 'Purposive Construction' explains various meanings attributed to the term 'purpose'. It would be in the fitness of discussion to refer to Purposive Construction in Barak's words:
"Hart and Sachs also appear to treat 'purpose' as a subjective concept. I say 'appear' because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislator's shoes,they introduce two elements of objectivity: First, the 9 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 9 interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent ofthe author, but rather the intent the author would have had, had he or she acted reasonably."
(Aharon Barak, Purposive Interpretation in Law (2007)at pg. 87)
17. A statute must be interpreted having regard to the purport and object of the Act. The doctrine of purposive construction must be resorted to. It would not be permissible for the Court to construe the provisions in such a manner which would destroy the very purpose for which the same was enacted. The principles in regard to the approach of the Court in interpreting the provisions of a statute with the change in the societal condition must also be borne in mind. The rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled.
18. The two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. In regard to the latter principle, the following statement of law appears in Maxwell at page 47:
"A statute is to be read as a whole - "It was resolved in the case of Lincoln Colleges case (1595) 3 Co Rep. 58B, at page59b that the good expositor of an Act of Parliament should make construction on all the parts together, and not of one part only by itself. Every clause of a statute is to be construed with reference to the context and other clauses of the act, so as, as far as possible, to make a consistent enactment of the whole statute. (Per Lord Davey in Canada Sugar RefiningCo. Ltd. v. R. 1898 Act 735 (Canada)."
19. As has been observed by the Supreme Court in the matter of RBI Vs. Peerless General Finance and Investment Co. Ltd., reported in (1987) 1 SCC 424, the textual interpretation that matches the contextual is known to be best interpretation. It is observed in paragraph 33 of the judgment, thus:
"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual 10 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 10 interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause,phrase by phrase and word by word. If a statute is looked at,in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section,each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place..."
20. Generally speaking, Statutes are classified in fourfold manner. Firstly, the statutes are remedial, secondly they are declaratory, thirdly they are procedural and lastly they are penal or disentitling. One has to find out the character of the statute as to whether it is penal or not, so as to apply principles of strict construction. In the instant matter it cannot be said that the provisions of the enactment which are relevant for consideration are penal in character. In a way, the provision is remedial and procedural. The provision, therefore, cannot be applied the standards as regards interpretation of a Statute which is penal in character.
21. On analysis of the judgments and the narrations, as recorded above, one must while interpreting the provisions of law,bear in mind that the provision as to be interpreted by reading all of its parts together and it is not permissible to omit any part thereof. The golden rule of interpretation is that the provisions of law have to be read as it is without adding or subtracting anything therefrom. In an appropriate case, the Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven.
22. In the instant matter, on reading of Section 5 of the Act of1971, it does transpire that the contingencies and the parameters laid down in clauses (i) & (ii) of sub-section (2)(b) of Section 3 shall have to be read in Section 5 except the bar of limitation as provided in Section 3(2)(b) of the Act of 1971. It would not be appropriate to over look the contingencies laid down in clauses (i) & (ii) of sub-section (2) (b) of Section 3 while considering the request of a pregnant woman for termination of the pregnancy if the conditions laid down in clauses (i) & (ii) of sub-section (2)(b) of Section 3 are satisfied it would provide a good ground for exercise of jurisdiction under Section 5 of the Act of 1971.
23. The Ministry of Health and Family Welfare, 11 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 11 Government of Maharashtra has prepared the MTP (Amendment) Bill and the notification in that regard was published on 29.10.2014. The State Government has proposed amendment to Section 3 of the Act of1973 and clause (C) is proposed to be added which reads thus :
"(C) the provisions of sub-section (2) of section 3 as relate to the length of the pregnancy shall not apply to the termination of a pregnancy by a registered health care provider where the termination of such pregnancy is necessitated by the diagnosis of any of the substantial foetal abnormalities as may be prescribed."
24. Considering the above proposed amendment, according to us, the interpretation which we have put to Section 5 of the Act of1971 appears to be a logical and same is in consonance with the proposed changes as suggested by the State in the MTP(Amendment) Bill notified on 29.10.2014.
25. The petitioner has restricted the claim in the petition in respect of prayer clause (b)(ii) of paragraph-56 of the Petition. The other prayers recorded by the petitioner in the instant petition are not pressed. Even otherwise, in view of the interpretation which we have put to Section 5 of the Act of 1971, prayer clause
(a), as requested by the petitioner, does not need consideration.
26. For the reasons recorded above, the Writ Petition is allowed. The petitioner is permitted to undergo medical termination of pregnancy at a medical facility of her choice. The petitioner undertakes to report to the approved center for carrying out the procedure of medical termination of pregnancy within two days from today.
27. The Counsel appearing for the petitioner states, on instructions, that the petitioner will bear the medical expenses of the procedure of medical termination of pregnancy at a medical facility of her choice.
28. It is clarified at this stage that the petitioner has been sensitized by the Committee/Medical Board about the risk factors involved and it would be open for the petitioner to undergo the procedure of medical termination of pregnancy at her own risk and consequences. It is further made clear that the Doctors who have put their opinions on record shall have the immunity in the event of occurrence of any litigation arising out of the instant Petition."
In the present case it is not disputed that the petitioner No. 2 is a victim of rape and is carrying a pregnancy of 14 weeks as reported by the doctor in its report dated 12.09.2020. There is a clear provision 12 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 12 regarding the termination of pregnancies under the Act of 1971, but going through Clause 3(2) and 4(b) of the Act "where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are of opinion, formed in good faith that:-
"(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped."
In the present case, no report from two medical practitioners is being submitted. But as the present case is a case of requiring the termination of pregnancy, therefore, looking to the urgency and necessity, this Court deems it appropriate to direct the the Chief Medical and Health Officer, District Shivpuri, District Shivpuri who is subsequently made a party to the petition, to get the petitioner No. 2 examined by two registered medical practitioners and to get a specific opinion with respect to the termination of pregnancy of petitioner No.2 and if the opinion given by them is clear on the aspect that the termination of the pregnancy is not danger to the life of petitioner No.2 and can be done without any complications, the pregnancy may be terminated expeditiously. The petitioner No. 1 of the petitioner No. 2 are directed to coordinate with the Chief Medical and Health Officer, 13 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 13 District Shivpuri on 21/09.2020 or 22.09.2020 and get the medical examination done by two registered medical practitioners. If the Chief Medical and Health Officer, District Shivpuri and two registered medical practitioners are of firm opinion, then termination of the pregnancy of petitioner No. 2 may be carried out. Every care and precautions should be taken while terminating the pregnancy of the petitioner No. 2.
In the present facts and circumstances of the case, it is directed that the pregnancy be terminated latest by 24.09.2020 subject to any medical complications. It is needless to mention that the Head of the Department of 'Gynecology', Head of the Department of 'Anesthesia' and all other specialist required will be made available at the time of termination of pregnancy as the girl is a minor and there may be a threat to life of the girl also. The Chief Medical and Health Officer, District Shivpuri is directed to ensure the postoperative care of the petitioner No.2.
In the light of the judgment passed by Hon'ble Supreme Court and as this Court has already granted the permission for carrying out the termination of pregnancy subject to the opinion of two registered medical practitioners still it is directed to the doctors who will be part of the process shall have immunity of the event of occurrence of any litigation arising out of the order passed by this Court.
The Principal Registrar of this Court is also directed to 14 HIGH COURT OF MADHYA PRADESH WP-13381-2020 (HARIRAM PAL AND OTHERS Vs STATE OF MADHYA PRADESH) 14 communicate the order passed by this Court to the Chief Medical and Health Officer, District Shivpuri immediately.
The Order be communicated to the learned Additional Advocate General for ensuring that all the direction given in the present order are positively complied with and also directed to communicate the present order to the Chief Medical and Health Officer, District Shivpuri.
With the aforesaid direction, the petition is allowed and disposed of.
(Vishal Mishra)
LJ*/- Judge
LOKENDRA
JAIN
2020.09.21
12:15:21 -07'00'